Citation Nr: 22016308 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-37 751 DATE: March 21, 2022 ORDER Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for right thumb first metacarpophalangeal joint arthritis (right thumb disability) is remanded. FINDING OF FACT The Veteran's tinnitus is related to in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1982 to December 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in November 2021. The case has been returned to the Board for review. In August 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). TINNITUS At the August 2021 Board hearing, the Veteran stated that he first experienced tinnitus during service which has continued since service. He stated that he worked every day in a shop building items for the range, such as frames. He used power tools in the shop all day long. He testified he did not wear hearing protection. The Veteran stated the ringing in his ears occurred once and a while since service until around 1997 when it became worse. The evidence of record documents that the Veteran has current tinnitus because the Veteran has credibly stated that he currently has ringing in his ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the veteran was competent to as to the ringing in his ears because ringing in the ears is capable of lay observation). Because tinnitus is observable by a layperson, the Board finds the Veteran's observation both competent and credible evidence of a current disability. As to the in-service occurrence or aggravation of a disease or injury, the Board finds the Veteran to be a reliable historian of his experiences and noise exposure in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was structures specialist. His MOS is consistent with the circumstances of the noise exposure the Veteran has testified he was exposed to while using power tools continuously over time. This evidence persuasively suggests that the Veteran likely was exposed to significant noise during active service. The December 2021 VA examiner found that the Veteran's current tinnitus is less likely than not related to service, relying, in part, on the fact that the Veteran's onset of tinnitus was 12 years after separation from service. However, the Veteran testified at his August 2021 Board hearing that his tinnitus began in service, becoming worse 12 years after service. Since the December 2021 VA opinion is based on an incorrect factual premise, it is assigned no probative value. As discussed above, service connection for the recognized chronic disease can be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331. Thus, recognizing that continuity of symptomatology requires the chronic disease to have manifested in service, the Board finds the Veteran's statements as to tinnitus since service to be credible. Following a review of the medical and lay evidence of record, the Board finds the competent and credible statements of the Veteran as to ongoing tinnitus since service to be sufficient to warrant service connection for tinnitus based upon continuity of symptomatology. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and finds that evidence of noise exposure, current tinnitus, and continuity of symptoms since service, support a grant of entitlement to service connection for tinnitus. See Walker at 1331; see also 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS FOR REMAND Right thumb disability In its August 2021 decision, the Board remanded this matter for further development. Specifically, the Board found that there were no VA treatment records in the Veteran's claims file prior to 2005. In relevant part, the Board noted that the Veteran testified that he had seen doctors at the Charleston, South Carolina VA Medical Center since 1985. While it appears that the RO may have attempted to locate VA medical records prior to 2005, it remains unclear if those records exist. Notably, while VA provided additional VA medical records, none were dated prior to 2005 and the record does not contain a negative response indicating that said medical records do not exist or have been destroyed. Rather, it appears the RO never received a response as to the existence of VA treatment records prior to 2005. Further, the Veteran was not notified of the RO's inability to obtain VA treatment records prior to 2005. The Board finds that remand is necessary to make an additional attempt to locate any identified VA treatment records prior to 2005 and for the RO to document any negative response in said attempt. The matter is REMANDED for the following action: 1. Make an additional attempt to locate any VA treatment records from 1985 until January 2005, specifically any previously unassociated records from the VA Medical Center in Charleston, South Carolina. If the AOJ cannot locate the requested records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the Veteran and his representative of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran and his representative, if he has one, must then be given an opportunity to respond. 2. If new, relevant VA treatment records are acquired, obtain an addendum opinion to determine the nature and etiology of the Veteran's right thumb first metacarpophalangeal joint arthritis. If the medical professional determines that it is necessary, schedule the Veteran for a VA examination. The medical professional should respond to the following: (Continued on the next page) --Did the Veteran's right thumb first metacarpophalangeal joint arthritis began in (or is otherwise related to) the Veteran's service? --The medical professional is also asked to discuss whether the circumstances of the in-service injury which was severe enough to dislocate the Veteran's right thumb IP joint could also have affected his MCP joint and resulted in his current arthritis condition. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.